lawyer as storyteller
James R. Elkins
Storytelling Techniques to Craft a Persuasive Legal Story
Lawyers Talking about Stories
[Reprinted from Galina
Davidoff, The Criminal Practice Report, vol.11 (18), 1999][Focusing
on how jurors make use of stories in their decision-making]
"[J]urors begin to develop a story about the entire case based
on the previews given in the opening statement. Jurors fill out the
story using their own experiences, attitudes and perceptions as a framework.
. . . [J]urors fill in the gray areas in the dispute at hand and 'connect
the dots' based on related experiences and their overall views of the
world. Jurors then selectively filter information presented to them
to maintain a coherent story. While the story is elaborated upon throughout
the trial, there is a strong tendency for jurors to discard information
inconsistent with the main story line."
"[J]urors begin to forumulate their story about the case very
early on in the process."
"So what do jurors do? How do they make sense of the conflicting
information presented at a trial? Years of study of jury behavior have
shown that, from an information processing standpoint, all jurors do
similar things regardless of the issues in the case, the lawyers, or
the venue or jurisdiction. Each juror strives to make sense of the conflicting
information by formulating a story that explains the situation in familiar
terms. The 'juror story' about the case is the picture of the case the
juror will remember long after the trial is completed. It is the narrative
'self talk' that the juror will use to explain the conflict in familiar
terms. This 'juror story' is the essence or heart of the story, reduced
to the three or four key messages or themes that define the case from
the juror's perspective. As the story teller, the trial lawyer can affect
how a juror describes the case and defines his or her story."
"Jurors feel that they have to make a decision, so they turn
inward to their own experiences to evaluate the case. We know
through our mock jury research over the years, that jurors view
the facts of a case through their own cognitive or selective �filters.�
Jurors' life experiences influence their perceptions of the events
and issues in your case. Indeed, we know that a juror tends
to listen to and believe information that is consistent with his or
her life experiences, and to discount information that does not match
with that experience. Research shows that information that is
consistent with one's beliefs is processed quickly and remembered
better than inconsistent information. Ambiguous information
is perceived as consistent with those beliefs, and information that
is inconsistent is scrutinized and more likely to be rejected.
If a trial attorney is to be persuasive, he or she must be able to
tell the case story in a way that allows it to penetrate the jurors'
cognitive filters. The theme(s) of the case must be consistent
with the jurors' view of the world. In addition, simple word
choices can make the difference between communicating your message
effectively and losing the jurors. For example, try substituting
�after� for subsequently� or �I would ask you to consider� or �I would
suggest� instead of �I submit to you.� The key is to communicate
in a language that the juror will understand and that will fit with
his or her life experiences." ~ How
Jurors Really Think: A Primer of Jury Psychology
"Jurors listen deductively, developing a story that explains the
conflict early in the trial process and then filtering the evidence
selectively to maintain a consistent picture. The trial lawyer must
tell a complete story--which includes compelling themes, a specific
narrative structure, and narrative elements - in the opening statement
if he or she is to get jurors to form a favorable story of the case."
"The establishing or opening shot is the first several minutes
of the story. In a legal story, it is the first two to three minutes
of the opening statement. It is where atmosphere is created, posture
is established and perspective is defined. It establishes the 'climate'
in which the story will be told and is arguably the most critical component
because it affects the way jurors will perceive the rest of the story."
Why We Do It & How to Get Better
[Stephen P. Lindsay] [alt.
Storytelling is a "concept which includes an overall theory of
defense, various themes used to support the theory, and the way the
issues are presented to the jurors. Differing tones of voice, pace of
questions, body language, eye contact, and the implementation of various
rhetorical devices in the presentation of the client’s story of
innocence are all a part of storytelling. Thus, storytelling is an atmosphere
of interest and intrigue created for the jurors by the defense attorney
which thereby creates a context within which the jurors will evaluate
"[S]tory telling empowers jurors to pay attention, to listen intently,
and to remember. More importantly, it causes jurors to invest in your
case with their hearts --not just their minds. It is far better to have
two or three jurors who believe in your case with their hearts than
six or eight who believe with their minds. 'Mind believers' will change
their votes more easily for they tend to reflect and analyze from the
perspective of 'my opinion is logical so show me how I am wrong and
I will consider changing.' 'Heart believers' will fight for you and
your client, persuading others that their/your position is right."
"Storytelling allows you to set the stage, cast the players, create
the mood, and put into place a tailored framework that will affect the
manner in which each juror will perceive all that is to follow. Without
a framework, you will get twelve different spins on what has been presented
usually, though, in synch with the prosecution’s theory. By creating
a framework, you guide jurors’ imaginations with your story resulting
in many if not most of the jurors interpreting the evidence in the context
of your story."
a Persuasive Story Structure
[Cliff Atkinson, Trial]
"Keep jurors engaged by making them the protagonists, saying,
for example, 'You are detectives in this case, on a mission to solve
the crime." This heightens their interest and makes them feel like they
are at the center of the action which in fact is the reality of the
"By applying a persuasive story structure, you can keep jurors
engaged and focused from beginning to end."
Advocacy: How to Persuade Judge and Jury
[Gerald Lebovits, Queens Bar Journal, January,
"Juries process facts by storytelling. Storytelling makes ideas
stick. . . . [L]awyers should establish clean story lines and leave
out needless details, places, dates, and history. Specific rather than
vague or general words increase the impact of the ideas. Before the
trial, lawyers should create a storyboard with important facts in chronological
order and themes to tell the story during trial. Action is critical
to a good story. This is why trial lawyers should focus on the people,
not on the problem. They should emphasize the events but not the legal
issues. Jurors will not base their decisions upon laws and previous
decisions. They will side with the arguments that affect their sense
Throughout Trial: Increasing Your Persuasive Powers
[Murray Ogborn, Trial, 1995]
"If listeners stop listening once a relevant story is located,
persuasion becomes more difficult. This means that attorneys must condense
information at trial, deliver it quickly with impact, and hope the main
theme is etched into the mind of each in a manner favorable to the client.
It also means that a motivational factor must be included in each story
that will overcome the natural tendency to stop processing once the
listener has found his or her own story."
"Storytelling should play a part in every aspect of every case.
It is easy to recognize the need to tell an effective and persuasive
story during opening
statement and closing
argument. A lawyer who can capture his or her audience in these
two parts of trial by telling a story with impact is to be admired,
but that lawyer has not fully mastered the art of communication. Storytelling
must be used in every single phase of the trial, from voir
dire through final argument." [Direct
Your Client's Story
[Alan Blumenfeld, Trial]
Critical Questions: "What part of the big story are you
telling with each witness you are calling? . . . Should you be using
a chronological or thematic approach in questioning a witness during
direct? Are you presenting a mini-story with each witness to explain
why he or she has been called to testify? What part of the story are
you telling in cross-examination with each of the other side's witnesses?"
("The unfolding of the story is as important in cross as it is
in direct. Unfortunately, many cross-examinations are a series of seemingly
unrelated bits and pieces of information with no storyline holding them
[Katherine James, Trial]
"Choose the best way to begin a particular story for that particular
case and for that particular client."
"Many attorneys assume that the story they are telling ends
in the past. Instead, it is alive, and the jurors are participating
in it. The story ends only when the jurors give it an ending."